Exhibit 4.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into on February
____, 2005 by and between Arcadia Resources, Inc., a Nevada corporation
("Seller" or "Company"), and ________________, a _______________ ("Purchaser").
RECITALS:
A. The Company desires to issue and sell to Purchaser shares of its
authorized common stock, $0.001 par value, (the "Common Stock"), subject to the
terms and conditions of this Agreement.
B. The Purchaser, which is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D promulgated by the U.S. Securities and
Exchange Commission (the "Commission"), desires to purchase from the Company
shares of the Common Stock, subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Purchaser and Seller agree as
follows:
1. SALE OF STOCK. Upon execution of this Agreement, Purchaser hereby
agrees to and does purchase from Seller, and Seller hereby agrees to and does
sell to Purchaser, __________________(_____________) shares of the Company's
original issue Common Stock (the "Acquired Stock"). No fractional shares of the
Acquired Stock shall be issued to Purchaser.
2. PURCHASE PRICE. The purchase price of the Acquired Stock is U.S.
$0.90 per share for a total aggregate purchase price for all of the Acquired
Stock of ______________________($_______________) and No/100 U.S. Dollars in
total ("Purchase Price").
3. PAYMENT OF PURCHASE PRICE. Contemporaneously with the execution of
this Agreement, the Purchase Price shall be paid in full in U.S. Dollars by
certified check or wire transfer.
4. ISSUANCE OF COMMON STOCK CERTIFICATE. Upon Seller's receipt of
payment in full of the Purchase Price, Seller shall deliver to its transfer
agent irrevocable instructions to issue and deliver to Purchaser one Common
Stock certificate evidencing Purchaser's ownership of the Acquired Shares,
subject to the terms and conditions of this Agreement.
5. ACKNOWLEDGMENTS, COVENANTS, REPRESENTATIONS AND WARRANTIES OF
PURCHASER. Purchaser acknowledges, covenants, represents and warrants to Seller
each of the following:
(A) ORGANIZATION; AUTHORITY; ENFORCEABILITY. Purchaser is an
entity duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization with full power and
authority to enter into and to consummate the
transactions contemplated hereby and otherwise to carry out its
obligations hereunder. The execution, delivery and performance by such
Purchaser of the transactions contemplated by this Agreement has been
duly authorized by all necessary corporate or similar action on the
part of such Purchaser. This Agreement and any related transaction
documents have been duly executed by such Purchaser, and when delivered
by such Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of such Purchaser, enforceable
against it in accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and rules of law governing specific performance, injunctive relief, or
other equitable remedies.
(B) GENERAL SOLICITATION. Purchaser is not purchasing the
Acquired Stock as a result of any advertisement, article, notice or
other communication regarding the Acquired Stock published in any
newspaper, magazine or similar media or broadcast over television or
radio or presented at any seminar or any other general solicitation or
general advertisement.
(C) NO PUBLIC SALE OR DISTRIBUTION. Purchaser is acquiring the
Acquired Stock for its own account and not with a view towards, or for
resale in connection with, the public sale or distribution thereof.
Purchaser is acquiring the Acquired Stock in the ordinary course of its
business. Purchaser does not have any agreement or understanding,
directly or indirectly, with any Person to distribute any of the
Acquired Stock.
(D) ACCREDITED INVESTOR STATUS. Purchaser is an "accredited
investor" as that term is defined in Rule 501(a) of Regulation D
promulgated by the Commission.
(E) RESIDENCY. Purchaser is a resident of the State of
____________________.
(F) RELIANCE ON EXEMPTIONS. Purchaser acknowledges that the
Acquired Stock is being offered and sold to it in reliance on specific
exemptions from the registration requirements of United States federal
and applicable state securities laws and that the Company is relying in
part upon the truth and accuracy of, and such Purchaser's compliance
with, the representations, covenants, warranties, agreements,
acknowledgments and understandings of such Purchaser set forth herein
in order to determine the availability of such exemptions and the
eligibility of such Purchaser to acquire the Acquired Stock.
(G) INFORMATION. Purchaser and its advisors, if any, have
obtained or have been furnished with all publicly available financial,
operational, business and other data, statements, information and
materials relating to the business, finances, prospects and operations
of the Company and such other publicly available materials relating to
the offer and sale of the Acquired Stock as have been requested by such
Purchaser. Purchaser and its advisors, if any, have been afforded the
opportunity to ask questions of the Company, and all such questions
have been answered to its full satisfaction. Neither such inquiries nor
any other due diligence investigations conducted by such Purchaser or
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its advisors, if any, or its representatives shall modify, amend or
affect the terms and conditions of this Agreement or the
acknowledgements, covenants, representations and warranties given by
Purchaser hereunder. Purchaser understands that its investment in the
Acquired Stock involves a high degree of risk. No oral representations
have been made or oral information furnished to Purchaser or its
representatives, if any, in connection with the purchase of the
Acquired Stock.
(H) NO GOVERNMENTAL REVIEW. Purchaser understands that no
United States federal or state agency or any other government or
governmental agency has passed on or made any recommendation or
endorsement of the Acquired Stock or the fairness or suitability of the
investment in the Acquired Stock, nor have such authorities passed upon
or endorsed the merits of the offering of the Acquired Stock.
(I) EXPERIENCE OF PURCHASER. Purchaser, either alone or
together with its representatives, has such knowledge, sophistication
and experience in business and financial matters, including investing
in companies engaged in the business in which the Company is engaged,
so as to be capable of evaluating the merits and risks of the
prospective investment in the Acquired Stock, and has so evaluated the
merits and risks of such investment. Purchaser is able to bear the
economic risk of an investment in the Acquired Stock and is able to
afford a complete loss of such investment. Purchaser has adequate means
of providing for its financial needs and contingencies and is able to
bear the substantial economic risk of an investment in the Acquired
Stock for an indefinite period.
(J) SALE AND ISSUANCE OF ADDITIONAL SHARES TO OTHERS.
Purchaser understands and agrees that additional shares of the
Company's Common Stock may be issued by the Company from time to time,
whether as part of the same offering by which Purchaser purchases the
Acquired Shares or a different offering or other event, which could
result in the dilution of the Purchaser's percentage interest and
shareholding position in the Company.
(K) UNREGISTERED STOCK; REGISTRATION OF STOCK. Purchaser
understands that the Acquired Stock has not been registered under the
Securities Act of 1933, as amended (the "Act"), or under any applicable
state securities law, in reliance upon available exemptions from
registration. Accordingly, Purchaser's right or ability to sell,
transfer, pledge or otherwise dispose of the Acquired Stock is severely
limited by applicable federal and state securities laws. Purchaser
understands that the Acquired Stock cannot be resold unless it is
registered or unless an exemption from registration is available
thereunder. The Company agrees to prepare and file with the Commission
a registration statement under the Securities Act of 1933 covering all
of the Acquired Stock for a secondary or resale offering to be made on
a continuous basis pursuant to Rule 415. The registration statement
shall be on Form S-1 or such other form as the Company determines
appropriate for such registration. The Company shall use reasonable
efforts to cause the registration statement to be declared effective by
the Commission not later than 90 days after the date of this Agreement.
The Acquired Stock may only be disposed of in compliance with
applicable state and federal securities laws. In connection with any
transfer of the Acquired Stock other than pursuant to an effective
registration statement
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or to the Company, the Company may require the transferor thereof to
provide to the Company an opinion of counsel, the form and substance of
which opinion shall be reasonably satisfactory to the Company, to the
effect that such transfer does not require registration of such
transferred securities under the Securities Act. Purchaser agrees that
any removal of the restrictive legend from certificates representing
the Acquired Stock, which removal shall first be authorized by the
Company subject to the terms of this Agreement, is predicated upon the
Company's reliance on, and the Purchaser's agreement that, and
Purchaser hereby agrees that, the Purchaser will not sell any Acquired
Stock except pursuant to either the registration requirements of the
Securities Act, including any applicable prospectus delivery
requirements, or an exemption therefrom.
(L) RESTRICTIVE LEGEND. Purchaser agrees to the imprinting, so
long as is required under applicable federal and state securities laws,
of a legend on the stock certificate evidencing the Acquired Stock in
substantially the following form:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SHARES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THESE SHARES UNDER THE SECURITIES ACT OF 1933 OR AN OPINION OF THE
COMPANY'S COUNSEL THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT.
(M) INDEMNIFICATION. Purchaser agrees to indemnify, hold
harmless and defend the Company, its affiliates, directors, officers
and employees from and against all damages, losses, cost and expenses
(including reasonable attorney fees) that they may incur by reason of
any breach of the acknowledgements, covenants, representations or
warranties made by Purchaser in this Agreement. Purchaser understands
and acknowledges that the representations, acknowledgements,
warranties, covenants, agreements and statements provided by Purchaser
herein may and shall be relied upon by the Company, its affiliates,
directors, officers and employees in the execution and performance of
this Agreement.
(N) NON-PUBLIC INFORMATION. Purchaser has not requested nor
been furnished with any information known or believed to constitute
material non-public information of the Company, unless prior thereto
Purchaser shall have executed a written agreement acceptable to the
Company regarding the confidentiality and use of such information.
(O) BROKERS/FINDERS. Except for fees payable by the Company to
Sandgrain Securities, Inc. in connection with the sale and purchase of
the Acquired Shares by Purchaser, Purchaser represents and agrees that
no brokerage or finder's fees, commissions or other amounts are or will
be payable by the Company, on account of any agreement, understanding
or undertaking by Purchaser, to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by this Agreement.
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(P) REGULATORY DISCLOSURES. Purchaser understands that the
Company shall, within four business days following the execution of
this Agreement, file a Current Report on Form 8-K with the Commission,
disclosing the transactions contemplated hereby and may make such other
filings and notices in the manner and time required by the Commission,
including the filing of this Agreement if required, as well as any
filings that may be required by state regulators.
(Q) REPLACEMENT OF CERTIFICATES. Purchaser agrees that if
any certificate or instrument evidencing any Acquired Stock is
mutilated, lost, stolen or destroyed, the Company shall issue or cause
to be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new certificate or
instrument, but only upon receipt of evidence reasonably satisfactory
to the Company of such loss, theft or destruction and customary and
reasonable indemnity or other form of security, if required by the
Company.
6. ACKNOWLEDGMENTS, COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE
COMPANY. The Company acknowledges, covenants, represents and warrants to
Purchaser each of the following:
(A) ORGANIZATION; AUTHORITY; ENFORCEABILITY. The Company is an
entity duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization with full power and
authority to enter into and to consummate the transactions contemplated
hereby and otherwise to carry out its obligations hereunder. The
execution, delivery and performance by the Company of the transactions
contemplated by this Agreement has been duly authorized by all
necessary corporate or similar action on the part of the Company. This
Agreement and any related transaction documents to which it is a party
have been duly executed by the Company, and when delivered by the
Company in accordance with the terms hereof, will constitute the valid
and legally binding obligation of the Company, enforceable against it
in accordance with its terms, subject to laws of general application
relating to bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and rules of law
governing specific performance, injunctive relief, or other equitable
remedies.
(B) CAPITALIZATION. The authorized and outstanding
capitalization of the Company is as described in the Company's most
recent periodic, current or other report or documents filed with the
Commission or otherwise disclosed to purchaser upon its request. The
Company has not issued any capital stock since such filing, other than
pursuant to the exercise of employee stock options under the Company's
stock option plans and pursuant to the conversion or exercise of Common
Stock options, warrants or other rights, excluding any issuances of
Common Stock not required to be reported on Form 8-K. All shares of the
Company's issued and outstanding capital stock have been duly
authorized, are validly issued and outstanding, and are fully paid and
nonassessable. There are no dividends which have accrued or been
declared but are unpaid on the capital stock of the Company.
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(C) ISSUANCE OF THE ACQUIRED STOCK. The Acquired Stock is duly
authorized and, when issued and paid for in accordance with the terms
hereof, will be duly and validly issued, fully paid and nonassessable,
free and clear of all rights of third parties, other than any rights
created by or imposed on the holders thereof through no action of the
Company.
(D) NO CONFLICTS. The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby do not and will not conflict with
or violate any provision of the Company's certificate or articles of
incorporation, bylaws or other organizational or charter documents.
(E) LITIGATION. The Company has no knowledge of any action,
suit, inquiry, notice of violation, proceeding or investigation pending
or threatened against the Company, before or by any court, arbitrator,
governmental or administrative agency or regulatory authority (federal,
state, county, local or foreign) which adversely affects or challenges
the legality, validity or enforceability of this Agreement or the
Acquired Stock.
(F) LICENSES; COMPLIANCE WITH REGULATORY REQUIREMENTS. The
Company holds all material authorizations, consents, approvals,
franchises, licenses and permits required under applicable law or
regulation for the operation of the business of the Company as
presently operated
(G) PRIVATE PLACEMENT. Assuming the accuracy of the
Purchaser's acknowledgements, representations and warranties set forth
in Section 5, no registration under the Securities Act is required for
the offer and sale of the Acquired Stock by the Company to the
Purchaser as contemplated hereby.
7. GOVERNING LAW AND ARBITRATION. This Agreement shall be governed by
and construed in accordance with the laws of the State of Michigan,
notwithstanding the fact that either party is or may hereafter become domiciled
or located in a different state or country. Any dispute, controversy or claim
arising out of or relating to this Agreement, whether arising in contract, tort
or otherwise shall be resolved in accordance with the rules of the American
Arbitration Association, except for any equitable or injunctive relief sought
under this Agreement. The arbitration shall be held at a location within Oakland
County, Michigan. The parties agree that any arbitration award rendered on any
claim submitted to arbitration shall be final and binding upon the parties and
not subject to appeal and that judgment may be entered upon any arbitration
award by any circuit court located in Michigan.
8. SUCCESSORS BOUND BY AGREEMENT. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and permitted
assigns. Purchaser may not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Company, which may be
withheld. This Agreement is intended for the benefit of the parties hereto and
their respective successors and permitted assigns and is not for the benefit of,
nor may any provision hereof be enforced by, any other person.
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9. WAIVER. The waiver of a breach of any provision of this Agreement by
any party shall not operate or be construed as a waiver of any subsequent
breach. Each and every right, remedy and power granted herein to any party or
allowed by law or equity shall be cumulative and not exclusive of any other.
10. AMENDMENT OF AGREEMENT. This Agreement may be altered or amended in
any of its provisions only by the written agreement of the parties hereto.
11. INTERPRETATION OF AGREEMENT. This Agreement constitutes the entire
Agreement between the parties with respect to the subject matter hereof and
supersedes any and all other prior or contemporaneous agreements, either oral or
written, between the parties with respect to the subject matter hereof. This
Agreement, or any facsimile hereof, may be executed by any number of
counterparts, each of which shall constitute an original Agreement, and all of
which shall constitute one and the same instrument. Headings herein are for
convenience only and shall not be deemed to limit or affect any of the
provisions hereof.
12. SURVIVAL OF COVENANTS, REPRESENTATIONS, WARRANTIES AND INDEMNITIES.
All covenants, acknowledgements, representations, warranties and indemnities
contained herein shall survive the execution and delivery of this Agreement.
The parties hereto have executed and delivered this Stock Purchase
Agreement the date first written above.
SELLER:
ARCADIA RESOURCES, INC.,
a Nevada corporation
By:
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Its:
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PURCHASER:
--------------------------------,
a ____________________________
By:
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Its:
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EIN: _______________________________
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